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THE COURTS—TO-DAY., Issue 8028, 3 October 1889
SUPREME COURT.-CIVIL SITTINGS.
(Before Hia Honor Mr Justice Williams.) Thk Queen v. William Brooks.—Application to have a Crown grant reformed to recover L2O damages, etc. Mr W. D. Stewart, with him Mr D. Stewart, appeared for plaintiff; Dr Fitchett for defendant. The plaintiff's statement of claim set forth that on. March 10,1864, defendant purchased section 8, block 4, Warepa, containing 79 acres and IS poles, and on September 21, 1870, a Crown grant in his favor was issued. Through an error, however, the grant included portion (1 rood 5 7-10 poles) of a public road or highway. The defendant had erected a fence along the south-wept boundary of the section, and included within it the portion of the road referred to, and thereby deprived the public of the said highway. He also refused to surrender tho Crown grant. Plaintiff was entitled to have all surface and flood water flow from the said highway along a natural waterway through the said section 8, but defendant had obstructed the flow of the said water by erecting a bank of earth across the waterway, thereby causing the water to overflow the road and datnagd it. Plaintiff therefore prayed that defendant be ordered to yield up and deliver the Crown grant for the purpose of having the error corrected ; to give up possession of the portion of land erroneously included in the grant; to pay L2O, damage caused to the road by bis obstructing the waterway; and to pay costs of this action. The statement of defence set out that defendant denied that there was any error in the grant, and also that it included any part of a highway or road ; and he alleged that if there was an error, it was not caused by fraud, deceit, or false suggestion on his part, Further he alleged that if there was an error it was a trivial one, and that the interests of the Queen or of her subjects are in no way affected or prejudiced thereby. He also claimed that the portion of land alleged to be wrongfully included in the grant is shown on the record map as part of section 8. Mr W. D.. Stewart sajd that the action involved two points—first, as to the right of the Crown to give a grant of what is part of a highway ; and second, whether the Crown was entitled to have water from the road flow through defendant's land. Counsel claimed that the Queen had the right (the road being vested in her) to the natural outlet for the water. If defendant was entitled to obstruct the waterway, it would mean that the road could not be used, as at some seasons it would bo i npaseable. The section purchased by defendant was surveyed in 1862 or 1863, and tho mistake which formed the ground of the action was caused in a very simple way. The road had j been formed with a bend just by defendant's section in order to avoid some swampy ground, and in carrying out the survey one j peg was placed at one end and another at the otherendof defendant'ssection, astraightline then being drawn from one to tho other, | takiDg iu the portion of land referred to. , This error was discovered some eighteen months or two years after the grant was issued. The draft Crown grant showed the bend in the road, although the grant itBelf did not. Counsel submitted that if it was Bhown that if the straight line forming the south-western boundary of defendant's land, which boundary was a road line, included part of the road the Crown could not grant it. Plaintiff (really the. Clutha County Council, tho executive of the Queen in the matter) therefore claimed to have the grant reformed. If the Crown was deceived by an error on the part of one of its officers it was entitled to have the error corrected. Evidence was given by C. W. Adams, chief surveyor, who made the survey in question, and who explained how the error occurred. A number of other witnesses were also examined, and the case had not concluded when we went to press. RESIDENT MAGISTRATE'S COURT. (Before Messrs J. P. Jones and P. G. Pryde, J.P.s.) C. B. Miller v. C. Beeby.-Claim, L 6 1,9s Bd, on a judgment summons. Mr Thornton appeared for plaintiff.—Defendant said he received L2 per week, but had no property. He could' not pay the amount claimed, because he had not sufficient money.—Counsel for plaintiff asked for an order of 5s per week, as the goods originally supplied were household necessities.—He was ordered to pay the amount claimed in monthly instalments of 103, in default seven days' imprisonment. Wong Lee v, Andrew Forsyth.—Ll 18s Bd, on a judgment summons, Mr Sim appeared for plaintiff.—Defendant, who did not appear, was ordered to pay the amount claimed (with costs) in weekly instalments of ,ss, in default three days' imprisonment. Jl. Donaldson v. W. Morton I .—Claim, LI! 18s sd, for goods supplied. Mr D. D. Macdonald appeared for defendant. Plaintiff said that defendant denied liability for his. mother's debts. In cross-examination he said that he claimed from defendant because be owned the house and paid the rent, although he did not receive the order for the I supplying of the goods from defendant— Judgment for defendant. ! Eliza M'Queen v. George Hatton.—Claim, LBlos, for board and lodging due. Mr Calvert appeared for plaintiff, and said that defendant admitted the claim, excepting for two weeks. Defendant had continually promised to pay the amount, but had failed to do so. —Judgment for plaintiff f6r L 6 16s, with costs.
Robert Wingfield v. William Roberts.— Claim, LlO, price of a horse. Mr F. Stilling appeared for plaintiff; defendant did not appear, —Judgment for the plaintiff for the amount olaimed, with oosts. CITY POLICE COURT. (Before E. H. Caiow, Esq., R.M.) Drunkenness.— Harry M'Kinley (seven previous- convictions) was' fined 'se, in default twenty .-four hours' imprisonment. James falter, who pleaded guilty, but urged that he was " walkable," wa& dealt with similany. Permitting Drunkenness. William Francis Wilkinson was charged with permitting drunkenness on his licensed premises, the Woodhaugh Hotel, on the 28th September, Mr Mouat appeared for defendant.— Matthew O'Halloran, laborer, residing at Woodhaugh, deposed that he was at defendant's hotel at 8 p.m. on the 28th ult, Taber, previously convicted of drunkenness, Went into the shed belonging to the hotel. He was drunk, but witness had seen him -worse. Taber had a horse, and was not in a fit'state to driveit. ' To Mr Mouat: Witness was at the' hotel for 1 a quarter of an hour. Taber waß there all that time. To the Benoh: Part of the time Taber was in the shed and part of the time talking to witness in the road.—James Neill, oarter, of the Leith Valley, said that he' was in DunJ 1 edin on the 28th with Taber. They left at about 7.45, and arrived at Woodhaugh Hotel abont eight o'clock. Taber had had some beer. When at the Woodhaugh Hotel he (witness) had some beer, but not with Taber. So far as he knew Taber did not have any. There was a raffle for a cow going on, and that was-what detained Taber a,ri<l witness. The raffle was going on iri>an empty ho,use no,t far jfrom 'the fiotel, onwitness believed t,o be the ho&l "— $Jr W oua !t if this .evidence w*s releWorship sajd fhat the Sergeant-
major had promised that he would lead up to something,—Witness (continuing) Baid that Taber and he left the hotel together. Taber drove his own horse on uhe way to the hotel. Witness could not say for oertain whether he drove his horse away, but he believed he walked away.— Wm. Davidson, gardener, of Glenleith, saw Taber in the hotel bar between 9 and 10 p m. on the 28th. He was " three-parts tight," and seemed to be holding on by the counter.— George Scofield, laborer, said that Taber coula walk by himself after going a little way on his road from the hotel. Witness had to assist Taber for a short distance. He was three parts drunk. It was on account of his hurting his foot that witness assisted him. Witness had sometimes had to assist him when he had had no drink at all, on account of his leg.—Constable Miller said that on the evening in question he went to the hotel and saw Taber sitting in the bar parlor between two men. He was drunk. Witness went to speak to Taber because of his leaving a dray on the road without a light. There were fifteen or sixteen men about the house. Witness asked Mr Wilkinson how it was that there were so many people about after hours, to which reply was made that Wilkinson had been raffling a horse for another; person. The men were then cleared out. Taber was unable to look after his horse. This all took place at half-past ten. To Mr Mouat: Taber is a little lame. To the Bench : None of the men were drunk but Taber.—Mr Mouat admitted that defendant was licensee of the house, but submitted that there was no case to answer. However drunk Taber might have been while at the hotel, there was no evidence that he got drink there; and for all that defendant knew Taber might have been a traveller, and if bo would have a right to accommodation.—His Worship: I don't know. A licensee has a right to put out a drunken man,.—Mr Mouat-. Yes, your Worship, it he is disturbing the peace. There may be a right to put him out, but not a duty.—His Worship said that if there was a right to put out a drunken man it was not a licensee's duty to receive a drunken man into his house. —Mr Mouat submitted that the meaning of section 146, under which the information was laid, was that a licensee was not to supply a man with liquor until he got drunk. In face of his previous plea, he (Mr Mouat) would not dispute that Taber was drunk, but that was not the offence set forth. There was no evidence that he was supplied with drink in the house ; and bo far as Wilkinson was concerned he gave Taber no permission, either expressly or impliedly, to get drunk, for he gave him no drink. If he supplied no drink he could scarcely besaid to " permit."—His Worship: A person cannot be convicted of permitting drunkenness unless he take some active part in supplying the liquor. I don't think there is sufficient evidence. There is no evidence that the man received ary drink in the house, Case dismissed.
Vagrancy.— Daniel Berry was charged with this offence. Mr Hanlon appeared on his behaif. Evidence in support of the charge was given by Constable Matheson, Detective M'Grath, Constable Hastie, and Constable Ruttledge, after hearing which His Worship said that a sufficient case had been made out to justify him in calling upon defendant to show that he had proper means of support.—Margaret Berry, accused's sister, said that accused lived at home with his mother, and got his meals there.—Accused said ho had done all the work he could get, and had received money from his brother and a married sister.—Ris Worship said that from the evidence there was very strong suspicion that accused did not get his livelihood honestly, but he would be given another chance. He would be ordered to enter into his own recognisance in the sum of LlO, to come up for sentence when called upon. The police would report as to whether he tried to get work. If he did he would not be called upon, but otherwise ho would come up for sentence, and might be imprisoned for three months. Affiliation.—Langston v. Thomas was struck out, owing to tho non-appearance of informant.—Mr Gallaway, speaking on behalf of defendant, Baid that he regretted that he had not an opportunity of denying on oath the charge made against him in the information. —Pearson v. Humphreys was also struck out, there being no appearance on behalf of either party.
THE COURTS—TO-DAY., Issue 8028, 3 October 1889
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